August 31, 2007

 

Appeals of                                                                   

                                                                                                                                  

NOVA EXPRESS                                                                   

                                                                                                                                     

Under Contract No. HCR 773L5                      

 

PSBCA Nos. 5091, 5207, 5213 and 5267

 

APPEARANCE FOR APPELLANT:         

Philip Emiabata

                                                                       

APPEARANCE FOR RESPONDENT:     

Douglas J. Colton, Esq.

Office Of The General Counsel

United States Postal Service

475  L'Enfant Plaza, SW, Room 6413                    

Washington, DC 20260-1127

 

OPINION OF THE BOARD ON MOTION FOR RECONSIDERATION AND

MOTION TO AMEND OPINION NUNC PRO TUNC

            Appellant, Nova Express, held a contract for transportation of mail between several post offices.  In 2003 and 2004, Respondent, United States Postal Service, in separate final decisions, terminated the contract for default and demanded that Appellant pay for damage it had caused at three of the post offices served by the route.  Appellant filed a claim against Respondent for damages stemming from the termination, which the contracting officer denied.  Appellant timely appealed the final decisions, and the appeals were consolidated for hearing and decision.  In its April 30, 2007 Opinion (Nova Express, PSBCA Nos. 5091, 5207, 5213 and 5267, 07-1 BCA ¶ 33,564), the Board denied Appellant’s challenge to the termination for default and its claim for damages stemming from the termination, and partially denied its appeal of Respondent’s claim for damage to the post offices.  Appellant also challenged Respondent’s claim for reprocurement costs, asserted in a May 7, 2004 final decision, and the Board determined that Respondent was not entitled to recover its reprocurement costs.  Appellant has timely filed a motion for reconsideration of the Board’s Opinion.

            Respondent did not file a response to Appellant’s motion, but it filed a Motion to Amend Opinion Nunc Pro Tunc, in which it asks the Board to correct what Respondent considers to be an error in the Opinion.  Appellant filed an opposition to Respondent’s motion.

            The facts relevant to deciding these motions were set forth in the April 30, 2007 Opinion and will be repeated here only as necessary to address the parties’ motions.

Appellant’s Motion for Reconsideration

            The Board upheld Respondent’s termination of Appellant’s contract (1) for Appellant’s unsatisfactory performance and (2) for Appellant’s failure to maintain insurance on its vehicles as required by the contract.  In asking the Board to reconsider its decision, Appellant repeats the same arguments it made in its post-hearing and reply briefs and in support of those arguments cites the same evidence that it relied on before.  Reconsideration is an appropriate avenue to bring to the attention of the Board new evidence that was not reasonably available at the hearing, but repeating arguments made and considered in connection with the original Opinion and simply asking the Board to reach a different conclusion upon a second look does not provide a basis for granting reconsideration.  See AFV Enterprises, Inc., PSBCA Nos. 2691, 3316, 02-1 BCA ¶ 31,764; The General Store, PSBCA No. 3951, 99-1 BCA ¶ 30,124; Montgomery-Ross-Fisher, Inc., PSBCA No. 1096, 84-3 BCA ¶ 17,607.  We considered Appellant’s arguments and the sometimes conflicting evidence in the record in reaching the April 30 decision, and Appellant has presented no new evidence or other ground that would warrant reaching a different conclusion.

            Nevertheless, we will address certain of Appellant’s arguments.  Appellant claims it is entitled to relief because its rights under the United States Constitution were violated.  We concluded that Appellant’s right to due process had been adequately protected by Appellant availing itself of the appeal process before the Board, and we did not find support in the record for Appellant’s claims that unfair and prejudicial treatment of Appellant during its performance of the contract amounted to a material breach of contract by Respondent.  However, Appellant argues that we failed to recognize that its substantive due process rights and right to equal protection under the United States Constitution were violated.  We have no jurisdiction over claims based solely upon due process and equal protection guarantees of the Constitution.  See The Swanson Group, Inc., ASBCA No. 47677, 96-2 BCA ¶ 28,565 citing Orlando Williams d/b/a Orlando Williams Janitorial Service, ASBCA Nos. 26099, 26872, 84-1 BCA ¶ 16,983 at 84,594; Paul A. Mason, PSBCA No. 1357, 85-2 BCA ¶ 17,998.  Accordingly, our Opinion properly did not extend to consideration of purely Constitutional claims.

            Appellant’s argument that the Board relied in its Opinion on evidence that was not admitted into the record is incorrect.  Appellant points out that irregularity reports (PS Forms 5500) prepared by postal employee Shimek were excluded from the record because he was not present at the hearing even though Appellant had requested his attendance (Tr. V 348, VI 93).  The Board did not consider or rely on the excluded documents in reaching its decision.  The finding that Appellant’s truck damaged the El Campo Post Office on August 24, 2002, was not based on records authored by Mr. Shimek, but was based on a written statement included in the record from a different Postal Service employee who witnessed the accident (AF III 76-77).  Similarly, the photograph of a truck (SAF 34) that Appellant complains was not positively identified as its truck also was excluded from the record (Tr. V 335) and was not considered by the Board.

            Appellant complains that the Board improperly relied on evidence of monthly efficiency ratings to support the termination and failed to recognize that Appellant substantially performed its contractual requirements.  First, the Board did not rely on evidence regarding the percentages of deficient performance that might have been reflected in Respondent’s efficiency reports and did not decide, as Appellant contends, that anything less than perfect performance would justify termination.  Rather, the Board chronicled the instances of deficient performance supported in the record and determined that Appellant’s overall performance was sufficiently deficient that Respondent was deprived of the level of performance it was entitled to under the contract.  For that reason, and for Appellant’s failure to comply with the contract’s insurance requirements, the termination was upheld.

            Appellant offers as new evidence in support of reconsideration a May 23, 2003 letter to Appellant from the company that financed its insurance premiums.  However, the point Appellant offers the letter for—that its insurer erred in canceling Appellant’s insurance—is irrelevant.  In the Opinion, we made clear that the fault for the cancellation was irrelevant.  Appellant knew its insurance was cancelled and operated the route using an uninsured truck for five months without obtaining replacement insurance or notifying Respondent.

            Appellant has not identified any factual or legal errors or demonstrated other grounds that would warrant changing our decision.  See AFV Enterprises, Inc., PSBCA Nos. 2691, 3316, 02-1 BCA ¶ 31,764; Montgomery-Ross-Fisher, Inc., PSBCA No. 1096, 84-3 BCA ¶ 17,607.  Appellant’s motion for reconsideration is denied.

Respondent’s Motion to Amend Opinion Nunc Pro Tunc

            By final decision dated May 7, 2004, the contracting officer asserted a claim against Appellant for Respondent’s excess costs of reprocuring service on the terminated route.  Appellant challenged the reprocurement cost claim in this proceeding, and Respondent did not object to the Board’s consideration of that issue.  In deciding that Respondent was not entitled to recover its reprocurement costs, the Board noted in a footnote that even though Appellant did not appeal the final decision assessing reprocurement costs, the Board had jurisdiction to consider Appellant’s challenge because Appellant had timely appealed the final decision terminating the contract for default.  See Opinion, fn. 10.

            In its motion, Respondent argues that the Board should have found jurisdiction based upon Appellant’s October 14, 2004 letter at Appeal File pages 531-533, which Respondent contends was a notice of appeal.  Doing so, according to Respondent, would prevent the Board from adopting the “reverse Fulford” principle and enlarging its jurisdiction in a manner not authorized by the Contract Disputes Act.  Respondent asks that the Board correct its Opinion to note that its jurisdiction to address Appellant’s challenge to Respondent’s reprocurement cost claim was based on the October 14 appeal of the contracting officer’s final decision.

            However, Appellant’s October 14, 2004 letter was sent more than 90 days after Appellant’s May 21, 2004 receipt of the contracting officer’s May 7, 2004 final decision (Opinion, fn. 8).  As an appeal of the May 7 final decision assessing reprocurement costs it was untimely and is not a basis for the Board’s jurisdiction.  See Cosmic Constr. Co. v. United States, 697 F.2d 1389 (Fed. Cir. 1982); Glenna Romero, PSBCA No. 5137, 04-2 BCA ¶ 32,790.

            Thus, footnote 10 of the Opinion correctly states the basis of our exercise of jurisdiction over Appellant’s challenge to imposition of reprocurement costs.  Moreover, the stated jurisdictional principle did not appear for the first time in the April 30, 2007 Opinion in these appeals.[1]  Our reliance on the “reverse Fulford” principle was based on established Board precedent.

            For the reasons discussed above, Respondent’s motion to amend the Opinion is denied.

 

 

 

                                                                                                Norman D. Menegat

                                                                                                Administrative Judge

                                                                                                Board Member

 

 

I concur:                                                                                  I concur:

 

 

_____________________                                                 ____________________

William A. Campbell                                                             David I. Brochstein

Administrative Judge                                                            Administrative Judge

Chairman                                                                               Vice Chairman

 


[1]  We quote from Arthur L. Johnson, PSBCA No. 3894, 97-1 BCA ¶ 28,773 at 143,589, which we cited in footnote 10, an appeal in which Respondent specifically challenged the Board’s jurisdiction under circumstances virtually identical to those present here:

 

“Respondent argues, however, that we lack jurisdiction to address this issue since Appellant did not timely appeal the December 22, 1995 final decision which assessed excess reprocurement costs against Appellant.  We disagree.  Having timely appealed the contracting officer’s final decision to terminate his contract for default, Appellant need not also file an appeal of the subsequent final decision in order to challenge, in this proceeding, the assessment of reprocurement costs.  Hubbard Trucking, Inc., PSBCA No. 3701, Nov. 18, 1996, slip op.[04-2 BCA ¶ 32,667]; see also Dynamic Products Co., PODBCA No. 2, Jan. 6, 1959; Tom Warr, IBCA No. 2360, 88-1 BCA ¶ 20,231; Pantronics, Inc., ASBCA No. 20982, 78-2 BCA ¶ 13,285; El-Tronics Inc., ASBCA No. 5457, 61-1 BCA ¶ 2961.”